Hybrid Work: The Legal Framework & Policy Tips
*This article does not constitute legal advice
With the advent of forced remote working during COVID, workplace surveys now consistently show most employees who can work remotely are demanding flexibility from their employer. The same surveys show that more than 66% want what we now call “hybrid” work schedules: ones where employees can (or must) attend at their regular workplace (e.g. office) for only a portion of every week or most weeks but have flexibility to work remotely the rest of the time. Many also want flexibility to work from more distant locations, such as a second home in a different time zone, or to work non-traditional hours or schedules e.g. 4 days of 10 hours or working 9:30 to 3 then 6 to 8:30 due to childcare constraints. The fact that Elon Musk recently made headlines by stating that Tesla employees who want to work remotely should find another employer and threatening to reverse Twitter’s very flexible hybrid work policy tells us how quickly expectations have changed.
Many employers and their HR professionals have been keen to accommodate and thus retain and attract these demanding workers and their CFOs equally keen to save on office space. Employers have rapidly pivoted from temporary remote work due to COVID to remote work as the “new normal”, often without thinking through the legal consequences. This article will argue that when implementing hybrid work in your organization, as an HR professional, you need to protect management’s right to adjust remote work practices in future to meet your organization’s evolving needs, as well as avoid legal pitfalls.
The good news is that, at least initially, the employer gets to choose where the work is done. Pre-COVID, that was traditionally at the office. Although many employers allowed their employees to work fully or part time remotely due to COVID safety concerns, they retain the right to require employees to return to working full time in the office now that it is safe and legally permissible to do so. Even employees hired during COVID who have only worked remotely can be called back to the office absent a clear written agreement that remote or hybrid working is an ongoing term of employment.
With high demand for hybrid, willing employers need to grant hybrid working rights sparingly where it makes business sense and, most importantly, make any hybrid work rights subject to a clear policy.
The first step in developing a policy and granting hybrid work rights is to carefully review all the relevant needs of each position to determine what minimum working hours or availability is needed for that position and not “go overboard” in granting broad hybrid flexibility for everyone. When considering non-standard workweeks, remember to check on permitted non-standard schedules with no overtime cost and/or overtime pay exemptions applicable in the province where the employee works.
One common source of misunderstandings involves the employee who, having switched to remote working during COVID, has unilaterally moved to a distant suburb or even another province or country. Again, assuming the employee was originally hired to work in the office, unless the employer agreed to a permanent relocation, the employer can now require the employee to attend at the office locally. As a caveat to that, if the employee unilaterally moved some time ago, the employer was aware of it and did not challenge it, some advance notice of the requirement to return to the office should be given. In fact, where remote work has been in place for a lengthy period(s) of time beyond those when it was mandated or recommended by public health authorities, employers should always give all employees (not just those who relocated) reasonable advance notice of return to work in the office requirements to allow them to make adjustments to their commuting, childcare arrangements etc.
Letting an employee work remotely outside your home jurisdiction can unwittingly create unexpected legal liabilities. So far, the provincial employment standards enforcement agencies (and their counterparts in other countries) have taken the view that the primary place of regular physical performance of work dictates which employment laws apply to the employee. They take this approach even with on-line workers, regardless of whether that employee moved from the “home” jurisdiction of the employer. For example, an employee who was hired in B.C. but moved to work remotely in Quebec and works “virtually’ at the B.C. employer will fall under Quebec’s, not B.C.’s, Employment Standards legislation. This may be fine if your organization already has a workforce in the province or jurisdiction to which the employee has relocated so can be transferred to that workforce. Where this is not the case, prudence dictates not exposing your organizations to unknown rules and liabilities under an unfamiliar set of employment laws. HR professionals dealing with such employees have two basic options: deny the request to avoid compliance with a new set of employment laws for one employee or consider converting the employee to a contractor. In Canada and many other jurisdictions, contractors have few mandated rights and impose less payroll-related administrative burden and cost (CPP, EI, WorkSafe premiums). However, employers will need to get legal advice from legal counsel in the remote work location to ensure the new arrangement is defensible under local laws.
Another key consideration before granting hybrid work rights is workplace safety at the remote work location. WorkSafe BC has made it clear that employers will be responsible for ensuring safe workplaces in employee’s homes—however impractical that is in practise. Employees injured during their workday at home will also be eligible to claim WorkSafe benefits. So hybrid/remote work policies need to allow the employer to set home work station and other working environment requirements and have adequate access to the home workplace to ensure compliance with WorkSafe requirements—something that can conflict with privacy expectations.
When granting hybrid work privileges, we suggest the following:
- Have a framework policy that clearly states all hybrid work is with written permission and the privilege can be withheld or withdrawn by the employer for any reason, with any cancellation or major change on e.g. 2 or 4 weeks advance notice. Remember, if an employer hires an employee to work hybrid or fully remote post COVID without reserving the right to change things, the courts are quick to treat this as a binding term of employment. This in turn means a unilateral return to work order effective immediately or very soon is a “constructive dismissal”;
- Keep hybrid rights out of employment agreements, where they will be more likely to be considered contractually binding. Instead, use email to confirm the terms of agreed hybrid work schedules and state any grant of such rights is subject to the broader policy;
- Clearly state all core in-office attendance, working hours and availability requirements and the employer right to amend these. Mention that remote work entails a high level of trust and that abuse of the privilege will lead to discipline or termination;
- If there is concern about employees working too far away or in other jurisdictions, require that remote work must be performed substantially in the city/region or province of hire, with any exceptions approved in writing;
- As noted above, allow the employer to set minimum home workplace physical requirements and rights of inspection/monitoring to ensure employee’s safety and health;
- Finally, reiterate the employer retains the right to amend or cancel the hybrid work for any reason, but including needs of the business and the need to more closely supervise or train/mentor the employee.
Following these tips, employers and their HR professionals should be able to satisfy demand for hybrid work while retaining overall power to control workplace attendance, culture and performance. Experience teaches us that, like most workplace trends, the current trend towards hybrid/remote working may reverse itself in future years.
J. Geoffrey Howard, is the founder and principal of Howard Employment Law where he provides strategic and practical advice on employment and labour law matters and represents clients in employment-related litigation. He can be reached at firstname.lastname@example.org.
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